James R. Balmforth: Questions about Joint Custody

Because we deal alot with child custody, it seems that the position on many people has changed over the years. It used to be that only one parent got custody – sole custody – of the children. Now, it is seen as a matter of basic human rights and human nature, unless they are unfit then divorced and separated parents and their children deserve joint custody.

“[A] parent’s right to the preservation of his relationship with his child derives from the fact that the parent’s achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his offspring. A child’s corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsive, reliable adult.” Franz v. U.S., 707 F.2d 582, 595-599; US Ct App (1983).

“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

The idea that coming into court on the subject of child custody and considering that issue to be a blank slate is simply wrong, it’s backward. We must start with the idea that children are best off with both parents involved as much as possible in their lives. Divorce is not a question of divorcing children from parents. This is not a question of deciding “which” parent is the best. Both fit parents are the best parents for their children.

The idea that courts must presumptively award sole custody to one parent or the other is patently irrational, inequitable, and discriminatory.

Joint Custody Is Becoming the New Normal

Seeing one fit parent as less than the other is more offensive and more harmful than racism. There are no second-class citizens. We must certainly see and treat fit parents—and their children—the same way. The idea that children are presumptively better off in the custody of one parent primarily over the other simply makes no sense. There is no evidence to support such a presumption, no reasoning that supports such a presumption. Indeed, evidence, reason, and our very human nature are to the contrary.

Indisputably there are certainly unfit parents whose contact with and control over their children must be limited for the sake of protecting a child’s basic human rights.

But a parent who has never been shown to be unfit in the first place is under no obligation to prove that he or she is “fit” to exercise equal time. Parental fitness, like innocence, is (or rather should be) presumed before the state can meddle in matters of parental rights. Unless one is proven to be an unfit parent, no one has the right to infringe upon one’s parental rights and one’s children’s rights to be reared by their parents.

Consequently, fit parents are (or rather should be) presumed entitled to the joint custody of their children, not the other way around. It is self-evident. It is never (it can never be) in a child’s best interest to be deprived of every opportunity to have a strong, loving, salutary relationship with both of his parents.

What Are Your Rights?

Before one’s parental rights are infringed it must be proven that one is an unfit parent; otherwise, the state has no business even considering whether to infringe on parental rights and a child’s right to his parent’s care, companionship, and custody.

Consequently, the state has no power (or rather should have no power) to compel a parent to prove he or she is just as good a parent as the other without there first being, at least, some clear and convincing, affirmative evidence for questioning—and then infringing upon—one’s parental fitness.

Consequently, the idea that a fit parent would be awarded with the other parent anything less than equal custody of children is illegitimate.

The presumption should be equal, joint legal custody and equal joint physical custody unless circumstances—by at least clear and convincing evidence—compel a judge to conclude that the exercise of joint custody infringes a child’s inalienable human rights (not the well-meaning but wrongheaded “Children’s Bill of Rights” and its ilk that have—thankfully—no force of law). Absent a showing of exceptional circumstances, one who is worthy of joint custody is worthy of equal joint custody with the other parent. Anything less would be a violation of a parent’s and his or her children’s rights.

Parental rights are a fundamental human and constitutional right, and so if someone is a fit parent, those rights are entitled to their highest, freest exercise, i.e., joint physical custody on an equal time-sharing basis (just as would be joint legal custody, with neither parent having more or less authority than the other and no more nor fewer parental rights than the other).

Rule of law depends upon ensuring as much freedom as possible for everyone subject to it. There is no such thing as the “least permissible” or “least acceptable” amount of personal freedom.

That is why this whole idea that courts claim they must award physical custody to one parent or the other, or that someone must prove “worthy” of as much custody as possible is backward. We must start with the presumption that unless it can be shown that there is some legitimate state interest in ordering otherwise, both parents get as much time with the children as possible and children have as much time with the parents as possible. To think or act otherwise is to believe parental rights flow from the state, subject to the will and the whim of the state.

The purpose of courts meddling in the affairs of the family must be surgical, as little as necessary. To do more than necessary means to do harm. Doing as little as is absolutely necessary helps prevent human error, bias, and a lust for power over the governed from creeping into the administration of the law. It protects against one’s freedom being infringed. It protects one’s rights, including parental rights, especially parental rights, from being infringed.

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If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.